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EXHIBIT 5
STOCK PURCHASE AGREEMENT, dated as of July 24, 2001 (this "Agreement"),
by and between The Xxx Xxxxxx Company, Inc., a New York corporation ("Xxxxxx"),
and Hallmark Entertainment, Inc., a Delaware corporation ("Hallmark").
WHEREAS, the Parties hereto desire to consummate the transaction
contemplated herein, pursuant to which Hallmark will purchase 5,377,721 shares
of Class A Stock (as hereinafter defined) held by Xxxxxx.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained, the Parties hereto
agree as follows:
ARTICLE 1.
DEFINITIONS
1.1 Definitions. As used herein, the following terms shall have the
following meanings:
"Actions" means all complaints, actions, suits, proceedings or
investigations.
"Adverse Consequences" means all claims, judgments, damages,
penalties, fines, costs, losses, liabilities or other monetary obligations
(including all reasonable attorney and expert fees incurred to enforce the terms
of this Agreement) net of any recovery from any third party including, without
limitation, insurance proceeds.
"Agreement" is defined in the preamble.
"Blue Sky Laws" means, collectively, the securities laws of
the several states and the rules and regulations issued in respect thereto.
"Class A Stock" means Class A Voting Common Stock of Crown
Holdings, par value $0.01 per share.
"Closing" is defined in Section 2.2.
"Closing Date" is defined in Section 2.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Crown Holdings" means Crown Media Holdings, Inc., a Delaware
corporation.
"XX.XX" means XX.XX & Merchandising AG, a German corporation.
"Encumbrance" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), charge against or interest in property to secure payment of a debt
or performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever, including the interest of a vendor,
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lessor or licensor under any conditional sale, capitalized lease, exclusive
license or other title retention agreement.
"Governmental Entity" means any Federal, state or local
government or any court, administrative agency or commission or other
governmental authority or agency, domestic or foreign.
"Hallmark" means Hallmark Entertainment, Inc., a Delaware
corporation.
"Hallmark Indemnified Persons" is defined in Section 6.1.
"Xxxxxx" means The Xxx Xxxxxx Company, Inc., a New York
corporation.
"Xxxxxx Indemnified Persons" is defined in Section 6.1.
"Indemnified Party" is defined in Section 6.2.
"Indemnifying Party" is defined in Section 6.2.
"Law" means any law, statute, regulation, rule, ordinance,
requirement or other binding action or requirement of any governmental,
regulatory or administrative body, agency or authority or any court of judicial
authority.
"Odyssey" means Crown Media United States, LLC, a Delaware
limited liability company (f/k/a Odyssey Holdings, L.L.C.).
"Odyssey Letter of Intent" means the letter of intent dated
July 19, 2001 which was addressed to XX.XX by Odyssey.
"Order" means any decree, order, judgment, writ, award,
injunction, stipulation or consent of or by any Governmental Entity.
"Other Agreements" means the agreements contemplated by
Section 5.1(c).
"Party" means Hallmark or Xxxxxx.
"Person" means any individual, corporation, general or limited
partnership, joint venture, association, limited liability company, joint stock
company, trust, business trust, bank, trust company, estate (including any
beneficiaries thereof), unincorporated entity, cooperative, association,
government branch, agency or political subdivision thereof or organization of
any kind.
"Purchase Price" is defined in Section 2.1.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations issued in respect thereto.
"Shares" means 5,377,721 shares of Class A Stock held by
Xxxxxx.
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"Stockholders Agreement" means the Amended and Restated
Stockholders Agreement dated as of March 14, 2001, by and among Hallmark,
Liberty Media Corporation, Liberty Crown, Inc., VISN Management Corp., XX Xxxxxx
Partners (BHCA), L.P., Xxxxxx, and Crown Holdings.
"Tax Return" means any report, return, documents, declaration
or other information (and any supporting schedules or attachments thereto)
required to be supplied to any taxing authority or jurisdiction with respect to
Taxes (including any returns or reports filed on a consolidated, unitary, or
combined basis).
"Taxes" means all taxes, charges, fees, levies, imposts, or
other assessments imposed by any Federal, state, local, foreign or other taxing
authority, including all income, gross receipts, gains profits, windfall
profits, gift, severance, ad valorem, capital, social security, unemployment
disability, premium, recapture, credit, excise, property, sales, use,
occupation, service, service use, leasing, leasing use, value added, transfer,
payroll, employment, withholding, estimated, license, stamp, franchise or
similar taxes, assessments, or other governmental charges of any kind
whatsoever, including interest earned thereon or penalties, additions, or fines
thereto or attributable to any failure to comply with any requirement regarding
Tax Returns and any interest in respect of such penalties, additions or fines,
provided that any interest, penalties, additions or fines that relate to Taxes
for any taxable period shall be deemed to be Taxes for such taxable period
regardless of when such items are incurred, accrued, assessed or charged.
"Written Notice" is defined in Section 6.2.
ARTICLE 2.
PURCHASE AND SALE OF STOCK
2.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, Hallmark agrees to purchase the Shares at the Closing, and Xxxxxx
agrees to sell the Shares to Hallmark at the Closing, for an aggregate purchase
price of Ninety Million Dollars ($90,000,000.00) (the "Purchase Price").
2.2 The Closing.
(a) Subject to the terms and conditions of this Agreement, the
closing of the transactions contemplated by this Agreement (the "Closing") shall
take place at the offices of Xxxxxx & Whitney LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000, at 11:00 a.m., Eastern Standard Time, on July 26, 2001, or such other
date as the Parties may agree (the "Closing Date").
(b) Subject to the conditions set forth in this Agreement, the
Parties agree to consummate the following transactions on the Closing Date:
(i) Hallmark shall deliver to Xxxxxx the Purchase
Price by wire transfer of immediately available funds to the account
designated in writing by Xxxxxx prior to the Closing; and
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(ii) Xxxxxx shall assign and transfer to Hallmark
good and valid title in and to the Shares, free and clear of any
Encumbrances, by delivering to Hallmark one or more stock certificates
representing the Shares, each duly endorsed for transfer or accompanied
by a duly executed stock power endorsed in blank.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF XXXXXX
Xxxxxx hereby represents and warrants as follows:
3.1 Existence; Power and Authority. Xxxxxx is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of New York. Xxxxxx has all requisite power and authority and has taken all
required action necessary to execute, deliver and perform this Agreement, and
each other document or instrument related hereto to which it is a party, and to
carry out the terms hereof and thereof. The execution, delivery and performance
of this Agreement and the consummation by Xxxxxx of any transaction related
hereto, will not (i) violate any provision of the organizational documents of
Xxxxxx, (ii) result in the breach of or constitute a default under any material
contract, lease, license, franchise, permit, indenture, mortgage, deed of trust,
note, agreement or other instrument to which Xxxxxx is a party or is bound or
(iii) violate any Law or Order applicable to or bearing upon Xxxxxx or any of
its assets or business.
3.2 Enforceability, etc. Assuming the due authorization, execution and
delivery of this Agreement by Hallmark, this Agreement constitutes the legal,
valid and binding obligation of Xxxxxx, enforceable against Xxxxxx in accordance
with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and (ii) general equitable principles
(whether considered in a proceeding in equity or at law).
3.3 Ownership. The Shares are owned by Xxxxxx free and clear of any
Encumbrances and there are no restrictions on transfer other than those set
forth in the Stockholders Agreement and those under the Federal securities laws
and the Blue Sky Laws.
3.4 Consents and Approvals. Neither the execution, delivery and
performance of this Agreement by Xxxxxx, nor the consummation by Xxxxxx of any
transaction related hereto will require any consent, approval, Order or
authorization of, filing, registration, declaration or taking of any other
action with, or notice to, any Person, other than such consents, approvals,
filings or actions (i) under the Federal securities laws or the Blue Sky Laws or
(ii) which have already been obtained.
3.5 Brokers, etc. Except for a fee payable to Xxxxx & Company
Incorporated, Xxxxxx is not obligated to pay any fee or commission to any
broker, finder or other similar Person in connection with the transactions
contemplated by this Agreement or the Program Agreements.
3.6 Litigation. There are no actions, suits, proceedings, orders,
investigations or claims pending or, to the knowledge of Xxxxxx, threatened
against or affecting Xxxxxx, at law or
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in equity, before any court, arbitration panel, tribunal or governmental
commission, bureau, agency or instrumentality which seeks to enjoin or restrain
the consummation of the transactions contemplated by this Agreement.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF HALLMARK
Hallmark hereby represents and warrants as follows:
4.1 Existence; Power and Authority. Hallmark is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware. Hallmark has all requisite power and authority and has taken all
required action necessary to execute, deliver and perform this Agreement, and
each other document or instrument related hereto to which it is a party, and to
carry out the terms hereof and thereof. Neither the execution, delivery and
performance of this Agreement, nor the consummation by Hallmark of any
transaction related hereto, will (i) violate any provision of the organizational
documents of Hallmark, (ii) result in the breach of or constitute a default
under any material contract, lease, license, franchise, permit, indenture,
mortgage, deed of trust, note, agreement or other instrument to which Hallmark
is a party or is bound or (iii) violate any Law or Order applicable to or
bearing upon Hallmark or any of its assets or business.
4.2 Enforceability, etc. Assuming the due authorization, execution and
delivery of this Agreement by Xxxxxx, this Agreement has been duly executed and
delivered by Hallmark and constitutes the legal, valid and binding obligation of
Hallmark, enforceable against Hallmark in accordance with its terms, subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and (ii) general equitable principles (whether
considered in a proceeding in equity or at law).
4.3 Consents and Approvals. Neither the execution, delivery and
performance of this Agreement by Hallmark, nor the consummation by Hallmark of
any transaction related hereto will require any consent, approval, Order or
authorization of, filing, registration, declaration or taking of any other
action with, or notice to, any Person, other than such consents, approvals,
filings or actions (i) under the Federal securities laws or the Blue Sky Laws or
(ii) which have already been obtained.
4.4 Purchase for Investment. Hallmark is acquiring the Shares pursuant
to this Agreement for its own account and not as a nominee or agent for any
other Person and with no present intention to engage in a distribution thereof.
Hallmark understands that the Shares must be held indefinitely unless registered
under the Securities Act or an exemption from such registration becomes
available.
4.5 Financial Matters. Hallmark represents and understands that the
acquisition of the Shares involves substantial risk and that Hallmark's
financial condition and investments are such that it is in a financial position
to hold the Shares for an indefinite period of time and to bear the economic
risk of, and withstand a complete loss of, its investment in the Shares.
Hallmark
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further represents that it (i) is an "accredited investor" as that term is
defined in Regulation D promulgated under the Securities Act, (ii) has a greater
than 90% voting interest in Crown Holdings, (iii) has nominated six of the 11
directors of Crown Holdings and (iv) is a sophisticated investor, capable of
evaluating the merits and risks of investing in Crown Holdings given its current
stage of development.
4.6 Brokers, etc. Hallmark is not obligated to pay any fee or
commission to any broker, finder or other similar Person in connection with the
transactions contemplated by this Agreement.
4.7 Litigation. There are no actions, suits, proceedings, orders,
investigations or claims pending or, to the knowledge of Hallmark, threatened
against or affecting Hallmark, at law or in equity, before any court,
arbitration panel, tribunal or governmental commission, bureau, agency or
instrumentality which seek to enjoin or restrain the consummation of the
transactions contemplated by this Agreement.
ARTICLE 5.
CONDITIONS PRECEDENT; RELATED COVENANTS
5.1 Conditions Precedent to Obligations of Both Parties. The respective
obligations of each Party to this Agreement shall be subject to the fulfillment,
at or prior to the Closing Date, of the following conditions, or waiver by such
Party:
(a) Legality. At the time of the Closing, the transactions
contemplated by this Agreement shall be legally permitted by all applicable Laws
and Orders.
(b) Absence of Proceedings to Restrain Consummation of the
Agreement. No judgment, injunction or order shall have been entered restraining
or prohibiting the transactions contemplated by this Agreement.
(c) Other Agreements. Each of the following agreements shall
have been executed and delivered by the respective parties thereto, in each case
dated as of or prior to the Closing Date and substantially in accordance in all
material respects with the Odyssey Letter of Intent: (i) an agreement by and
between Odyssey and XX.XX, relating to the Program License Agreement between
Odyssey and XX.XX dated as of March 14, 2001; (ii) an Amended and Restated
Program License Agreement by and between Odyssey and Xxxxxx; and (iii) a letter
agreement terminating the License Agreement dated as of March 14, 2001 between
Xxxxxx and Odyssey.
5.2 Conditions Precedent to Obligations of Hallmark. The obligations of
Hallmark shall be subject to the fulfillment, at or prior to the Closing Date,
of the following conditions, or the waiver thereof by Hallmark:
(a) Representations and Warranties. The representations and
warranties of Xxxxxx set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing
Date.
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(b) Secretary's Certificates. Hallmark shall have received a
certificate from a Secretary or Assistant Secretary of Xxxxxx (i) certifying the
organizational documents of Xxxxxx and relevant shareholder and board
resolutions authorizing the transactions contemplated by this Agreement, and
(ii) as to the incumbency of each person signing any of such agreements on
behalf of Xxxxxx.
5.3 Conditions Precedent to Obligations of Xxxxxx. The obligations of
Xxxxxx shall be subject to the fulfillment, at or prior to the Closing Date, of
the following conditions, or the waiver thereof by Xxxxxx:
(a) Representations and Warranties. The representations and
warranties of Hallmark set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing
Date.
(b) Secretary's Certificates. Xxxxxx shall have received a
certificate from a Secretary or Assistant Secretary of Hallmark (i) certifying
the organizational documents of Hallmark and relevant shareholder and board
resolutions authorizing the transactions contemplated by this Agreement and (ii)
as to the incumbency of each person signing this Agreement on behalf of
Hallmark.
5.4 Satisfaction of Conditions and Consummation of Transactions.
Notwithstanding anything to the contrary in this Agreement, each Party shall use
its best efforts to cause the conditions to the other Party's obligations
hereunder (including those set forth in Section 5.1) to be satisfied as soon as
reasonably possible, and to consummate the transactions contemplated by this
Agreement as soon as reasonably possible after the satisfaction thereof and in
any event no later than July 30, 2001.
5.5 Further Assurances. Each Party agrees to use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with the other Party in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement,
including, without limitation, the execution and delivery of any additional
instruments necessary to consummate the transactions contemplated by, and to
fully carry out the purposes of, this Agreement.
ARTICLE 6.
INDEMNIFICATION
6.1 Indemnification.
(a) Xxxxxx agrees from and after the Closing to indemnify and
hold harmless Hallmark, all of its officers, directors, shareholders,
affiliates, employees and agents, and each of the successors and assigns of any
of the foregoing (the "Hallmark Indemnified Persons") from and against, and
waive any claim for contribution against Hallmark with respect to, any Adverse
Consequences, and defend the Hallmark Indemnified Persons against any Actions,
to the extent
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such Adverse Consequences or Actions arise out of or result from the breach of
any of Xxxxxx'x representations, warranties or covenants set forth in this
Agreement.
(b) Hallmark agrees from and after the Closing to indemnify
and hold harmless Xxxxxx, all of its officers, directors, shareholders,
affiliates, employees and agents, and each of the successors and assigns of any
of the foregoing (the "Xxxxxx Indemnified Persons") from and against, and waive
any claim for contribution against Xxxxxx with respect to, any Adverse
Consequences, and defend the Xxxxxx Indemnified Persons against any Actions, to
the extent such Adverse Consequences or Actions arise out of or result from the
breach of any of Hallmark's representations, warranties or covenants set forth
in this Agreement.
6.2 Procedure for Indemnification. If any Person shall claim
indemnification (the "Indemnified Party") hereunder for any claim other than a
third party claim, the Indemnified Party shall promptly give written notice to
the Party from whom indemnification is sought (the "Indemnifying Party") of the
nature and amount of the claim. If an Indemnified Party shall claim
indemnification hereunder arising from any claim or demand of a third party, the
Indemnified Party shall promptly give written notice (a "Written Notice") to the
Indemnifying Party of the basis for such claim or demand, setting forth the
nature of the claim or demand in detail. The Indemnifying Party shall have the
right to compromise or, if appropriate, defend at its own cost and through
counsel of its own choosing (reasonably acceptable to the Indemnified Party) any
claim or demand set forth in a Written Notice giving rise to such claim for
indemnification. In the event the Indemnifying Party undertakes to compromise or
defend any such claim or demand, it shall promptly (and in any event, no later
than thirty (30) days after receipt of the Written Notice) notify the
Indemnified Party in writing of its intention to do so. If the Indemnifying
Party fails to notify the Indemnified Party of its intent to undertake the
compromise or defense of such claim or demand, or notifies the Indemnified Party
that it does not intend to undertake such actions, then the Indemnified Party
may do so at the expense of the Indemnifying Party. The Parties shall fully
cooperate in the defense or compromise of any indemnified claim or demand. After
the assumption of the defense by the Indemnifying Party, the Indemnifying Party
shall not be liable for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with such defense, but the Indemnified Party may
participate in such defense at its own expense. No settlement of a third party
claim or demand defended by the Indemnifying Party shall be made without the
written consent of the Indemnified Party, such consent not to be unreasonably
withheld or delayed. The Indemnifying Party shall not, except with written
consent of the Indemnified Party, consent to the entry of a judgment or
settlement which does not include, as an unconditional term thereof, the giving
by the claimant or plaintiff to the Indemnified Party of an unconditional
release from all liability in respect of such third party claim or demand.
6.3 Survival of Representations and Warranties. Notwithstanding any
investigation made by or on behalf of either of the Parties hereto or the
results of any such investigation and notwithstanding the participation of
either of the Parties hereto in the Closing, the representations and warranties
contained in ARTICLE 3 and ARTICLE 4 shall survive the Closing until the second
(2nd) anniversary of the Closing Date.
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ARTICLE 7.
TERMINATION
7.1 Termination by Mutual Consent. This Agreement may be terminated and
the transactions contemplated hereby may be abandoned at any time prior to the
Closing by the written consent of both Parties.
7.2 Termination by Either Party. This Agreement may be terminated (upon
written notice from the terminating Party to the other Party) and the
transactions contemplated hereby may be abandoned by action of either Party, if
(i) the Closing shall not have occurred on or prior to July 31, 2001 (provided
that the right to terminate this Agreement under this clause shall not be
available to any Party whose failure to fulfill any obligation under this
Agreement has been the cause of or resulted in the failure of the Closing to
occur on or prior to such dates, and such right shall not be available to
Hallmark in the event that Odyssey fails to execute and deliver the Other
Agreements substantially in accordance in all material respects with the Odyssey
Letter of Intent) or (ii) any Governmental Entity shall have issued a Law or
Order permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated hereby and such Law or Order shall have become final
and nonappealable.
7.3 Effect of Termination and Abandonment. In the event of termination
of this Agreement pursuant to this ARTICLE 7, neither Party hereto (or any of
its directors or officers) shall have any liability or further obligation to any
other Party pursuant to this Agreement, except that ARTICLE 8 shall survive
termination of this Agreement and nothing herein will relieve either Party from
liability for any breach of this Agreement occurring prior to such termination.
ARTICLE 8.
GENERAL PROVISIONS; OTHER AGREEMENTS
8.1 Confidentiality. Neither Party hereto shall, without the prior
written consent of the other Party, permit any of their respective officers,
employees, agents or representatives to disclose to any third parties any of the
terms contained in this Agreement, except to the extent that such information is
publicly available or required to be disclosed by Law; provided that a copy of
this Agreement may be provided to XX.XX's banks which provide reasonable
assurances that they will keep confidential the existence of this Agreement and
the terms contained herein.
8.2 Press Releases. No press release or public announcement related to
this Agreement or the transactions contemplated hereby shall be issued or made
without the joint approval of Hallmark and Xxxxxx, unless required by Law. If
any such press release or public announcement is so required (except in the case
of any disclosure required under the Federal securities laws to be made in a
filing with the Securities and Exchange Commission), the Person making such
disclosure shall consult with Hallmark and Xxxxxx prior to making such
disclosure, and the Parties shall use all reasonable efforts, acting in good
faith, to agree upon a text for such disclosure which is satisfactory to each of
the Parties.
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8.3 Expenses. Regardless of whether the transactions contemplated
hereby are consummated, all legal and other costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such costs and expenses.
8.4 Tax Agreement. Each of Hallmark and Xxxxxx acknowledges and agrees
that the purchase and sale of the Shares contemplated by this Agreement were not
contemplated by either Hallmark or Xxxxxx at the time the Contribution
Agreement, dated as of March 14, 2001, by and among Xxxxxx, Crown Holdings and
Crown Media International, Inc. was executed. Each of Hallmark and Xxxxxx agrees
that it will not file any Tax Return inconsistent with the foregoing.
8.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the procedural and substantive laws of the State of New York,
including Section 5-1401 of the New York General Obligations Law.
8.6 Headings. Article and Section headings used in this Agreement are
for convenience only and shall not affect the meaning or construction of this
Agreement.
8.7 Notices. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to either Party when delivered by hand,
by messenger or by a nationally recognized overnight delivery company, when
delivered by facsimile and confirmed by return facsimile, in each case to the
applicable addresses set forth below:
(a) if to Hallmark to:
Hallmark Entertainment, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Hallmark Cards, Incorporated
Department 339
0000 XxXxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(b) if to Xxxxxx to:
The Xxx Xxxxxx Company, Inc.
0000 X. XxXxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8.8 Parties in Interest. All the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
Parties and their respective successors and permitted assigns; provided that,
except as otherwise expressly set forth in this Agreement, neither the rights
nor the obligations of either Party may be assigned or delegated without the
prior written consent of each of the other Party and any purported assignment in
violation hereof shall be null and void.
8.9 Entire Agreement. This Agreement constitutes the entire agreement
between the Parties hereto and supersedes all prior agreements and
understandings, both written and oral, with respect to the subject matter
hereof.
8.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Signatures on this
Agreement may be communicated by facsimile transmission and shall be binding
upon the Parties so transmitting their signatures. Counterparts with original
signatures shall be provided to the other Party following the applicable
facsimile transmission; provided that the failure to provide the original
counterpart shall have no effect on the validity or the binding nature of this
Agreement.
8.11 Amendment. This Agreement may be modified or amended only by an
instrument in writing signed by both Hallmark and Xxxxxx.
8.12 Gender, etc. Whenever the context may require, any pronouns used
herein shall be deemed to refer to the masculine, feminine or neuter forms, and
the singular form of nouns, pronouns and verbs shall include the plural, and
vice versa. Whenever used herein, the terms "include," "includes" and
"including" shall mean to include without limitation.
8.13 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such
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provisions shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this Agreement.
8.14 No Waiver. No failure to exercise and no delay in exercising any
right, power or privilege granted under this Agreement shall operate as a waiver
of such right, power or privilege. No single or partial exercise of any right,
power or privilege granted under this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of
the date first written above.
HALLMARK ENTERTAINMENT, INC.
By: /s/ XXXXXX X. XXXXX, XX.
--------------------------------------
Name: Xxxxxx X. Xxxxx, Xx.
Title:
THE XXX XXXXXX COMPANY, INC.
By: /s/ XXXXXXX X. XXXXXX
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
